2019-377-Order No. 2019-038 Recorded 8/22/2019REVIEWED
fart,
LEGAL COUNSEL
Recorded in Deschutes County CJ2019-377
Nancy Blankenship, County Clerk
Commissioners' Journal 08/22/2019 3:24:26 PM
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OES
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Allowing a Hearings Officer to
Consider New Evidence Relevant to LUBA No.
2018-140 and File No. 247-19-000611-A
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*
ORDER NO. 2019-038
WHEREAS, the Oregon Land Use Board of Appeals ("LUBA") issued a final opinion and order in LUBA
No. 2018-140 remanding the County's approval of a Thornburgh Destination Resort tentative plan and site plan;
and
WHEREAS, Central Land & Cattle Co., LLC, the applicant, initiated the LUBA remand in File No. 247-
19-000611-A; and
WHEREAS, Section 22.34.040(A) of the Deschutes County Code ("DCC") allows the Board of County
Commissioners ("Board") discretion to reopen the record in instances in which it deems to be appropriate to do
so; and
WHEREAS, the remand will be considered by a County land use hearings officer; and
WHEREAS, the petitioner before LUBA previously argued during proceedings also concerning the
Thornburgh Destination Resort that a Board order is required to accept new evidence relating to issues remanded
by LUBA unless LUBA expressly allows the consideration of new evidence on remand;
WHEREAS, the Board wishes to make it clear to the parties that they may present new evidence regarding
the issue remanded to the County by LUBA in this matter; and
WHEREAS, the Board does not wish to reopen the record to allow parties to raise new issues; any
additional testimony and evidence submitted by the parties will need to comply with DCC 22.34.040(C); now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby reopens the record of the Thornburgh tentative plan and site plan
applications numbered 247 -18 -000386 -TP, -454-SP, and -592-MA to consider new testimony and evidence
related to the issue remanded to the County by LUBA.
Section 2. The hearings officer on remand shall not accept new testimony and evidence on any other
issues unless allowed by DCC 22.34.040(C).
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PAGE 1 OF 2 - ORDER NO. 2019-038
Dated this 19 of August , 2019
PAGE 2 OF 2 - ORDER NO. 2019-038
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES CO Y, OREGON
PH \ IP G. I
NDERSON, Chair
PATTI ADAIR, Vice Chair
ANTHONY BONE, Commissioner
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Meeting of August 19, 2019
DATE: August 13, 2019
FROM: Jacob Ripper, Community Development, 541-385-1759
TITLE OF AGENDA ITEM:
Consideration of Order 2019-038: an Order to Reopen the Record Related to the LUBA
Remand for the Thornburgh Destination Resort Tentative Plan and Site Plan Review
BACKGROUND AND POLICY IMPLICATIONS:
On August 2, 2019, the Thornburgh Resort initiated a Land Use Board of Appeals (LUBA) remand,
file no. 247-19-000611-A. Staff respectfully requests the Board of County Commissioners to issue
Order 2019-038 to allow the Hearings Officer to receive additional testimony and evidence related
to the LUBA remand. There is one remand issued to be resolved.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Jacob Ripper, Senior Planner
MEMORANDUM
EVE L.O I4 I;7 T
DATE: August 13, 2019
TO: Board of County Commissioners
FROM: Jacob Ripper, AICP, Senior Planner
RE: Thornburgh Resort Phase A-1 / LUBA Remand Hearing Proceedings
On August 2, 2019, the Thornburgh Resort' initiated a Land Use Board of Appeals (LUBA) remand,
file no. 247-19-000611-A. Staff respectfully requests the Board of County Commissioners (Board) to
issue Order 2019-038 to allow the Hearings Officer to receive additional testimony and evidence
related to the LUBA remand. There is one remand issue to be resolved and is discussed below.
Deschutes County Code (DCC) 22.34.040, Proceedings on Remand, grants the Board discretion to:
• Reopen the record in instances in which it deems to be appropriate;
• Enable a remanded application for a land use permit to be modified to address issues
involved in the remand to the extent that such modifications would not substantially alter
the proposal and would not have a significantly greater impact on surrounding neighbors;
and,
• Allow parties to raise new, unresolved issues that relate to new evidence directed toward the
issue on remand.
1. BACKGROUND
The Thornburgh Destination Resort has a long and complex history. The Conceptual Master Plan
(CMP) was applied for in 2005. The Final Master Plan (FMP) was originally applied for in 2007. Years
of litigation resulted in the FMP being recently affirmed by LUBA in 2018.
In 2018, the resort requested approval of a Tentative Plan (TP) and Site Plan Review (SP) for the
initial phase of the Thornburgh Destination Resort. This phase (A-1) includes a subdivision for 192
1 Owner: Central Land & Cattle Co., LLC
117 NW Lafayette Avenue, Bend, Oregon 97703
(541) 388-6575 cdd@deschutes.org
P.O. Box 6005, Bend, OR 97708-6005
www.deschutes.org/cd
single-family lots, overnight lodging units, private roads, emergency access roads, a well, well house,
pump house, reservoir, interim subsurface sewage disposal system, and open space.
11. HEARINGS OFFICER DECISION & REMAND
The Hearings Officer approved the Phase A-1 proposal. Nunzie Gould appealed that decision to the
Board. Due to time constraints and disagreements between parties regarding the statutory 150 -day
clock, the Board declined review of the appeal. The County's decision was appealed to LUBA, and
LUBA remanded (LUBA No. 2018-140) on a singular issue - the 17th condition of approval (TP
Condition 17):
Site design approval. Prior to issuance of building permits for the single -single family
dwellings, obtain site design approval for at least 50 OLU's, which approval shall demonstrate
that: a) the OLU's qualify as such and b) the Big Springs Ranch and COID water referenced in
the Mitigation Plan and FMP decision have been secured, demonstrate that the proposed
alternate source is acceptable to ODFW and provides the same quantity and quality
mitigation so as to not constitute a substantial modification or justify a modification to the
FMP.
LUBA summarized the reason for the remand:
We conclude that TP Condition 1 7 violates the right to a public hearing on whether the no
net loss/degradation standard will be satisfied by mitigation from water sources not
specified in the mitigation plan. Accordingly, the county may not rely on TP Condition 17 to
conclude that, as conditioned, the tentative plan approval will comply with the mitigation
plan and thus satisfy the no net loss/degradation standard. On remand, the county must
consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no
net loss/degradation standard and whether a change in the source of mitigation water
constitutes a substantial change to the FMP approval, requiring a new application,
modification of the application, or other further review consistent with FMP and DCC
destination resort regulations.
The appellant's other assignments of error were denied.
Attachment:
1) Board Order 2019-038
247-19-000611-A, Board Order 2019-038 Page 2 of 2